Karnataka High Court
Sri N Ningappa vs Sri Govindashetty on 17 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 60 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.60 OF 2023 (DEC/POS)
BETWEEN:
1. SRI. N. NINGAPPA,
AGED ABOUT 77 YEARS,
S/O LATE CHIKKANINGAIAH,
R/AT NO.2713,
2ND CROSS, K.G.KOPPAL,
MYSURU-570001.
...APPELLANT
(BY SRI. SHIVARAMU H.C., ADVOCATE)
AND:
1. SRI. GOVINDASHETTY,
Digitally signed AGED ABOUT 53 YEARS,
by DEVIKA M S/O MUNISHETTY.
Location: HIGH
COURT OF 2. SMT. N. MANJULA,
KARNATAKA AGED ABOUT 49 YEARS,
W/O GOVINDASHETTY.
BOTH ARE RESIDING AT NO.215,
RAMAKRISHNA NAGARA,
DATTAGALLI EXTENSION,
NIMISHAMBA LAYOUT,
CHAMARAJA MOHALLA,
MYSURU-570001.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 26.09.2022
PASSED IN R.A.NO.26/2021 ON THE FILE OF THE VI
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RSA No. 60 of 2023
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ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 11.12.2020 PASSED IN
O.S.NO.408/2015 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, MYSURU.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant.
2. The factual matrix of the case of the plaintiff
before the Trial Court while seeking the relief of declaration
and possession is that the plaintiff is the absolute owner of
Sy.No.65/1B, measuring 1 acre 34 guntas, which was
acquired by him under a registered partition deed dated
12.12.1955. Since from the date of partition, the plaintiff is in
possession and enjoyment of the property. The plaintiff was
the head of their joint family. In order to increase the income
of the joint family and also for the welfare of the family, he
had formed a residential layout and about 20-25 residential
sites have been sold to different persons under registered sale
deeds. Such purchasers are in possession and enjoyment of
their respective residential sites by putting up structures in it.
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The remaining extent of Sy.No.65/1B, measuring
approximately about 30 guntas and it is in possession of the
plaintiff and joint family members. In the second week of
March 2009, the plaintiff notices that defendant No.1 and 2
are in possession of a structure put up in a portion of the said
property measuring to an extent of 30 x 60 feet, claiming that
it bears site No.215. It has been described as suit schedule
property. The plaintiff enquired defendant No.1 about their
right to be in possession of the suit property, for which
defendant No.1 informed that he became owner by virtue of a
registered sale deed. When the plaintiff insisted for
production of the registered sale deed, he changed the
version and stated that it is the self-acquired property of his
wife by virtue of a registered gift deed. The plaintiff insisted
for production of registered gift deed in favour of defendant
No.1. But, they have not produced the same. The plaintiff
issued a legal notice to the defendants and inspite of the said
notice, the defendants have not complied with the said
demand. Hence, the plaintiff filed the suit for the relief of
declaration and possession.
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3. In pursuance of the suit summons, the defendants
appeared through their counsel and filed the written
statement contending that the suit is not maintainable. The
suit property is measuring 1800 sq.feet with a 12 squares of
constructed building. It is situated in Nimishamba Extension,
which is situated in Kuvempunagar and Vivekananda Nagar,
Mysuru. The entire area is developed as commercial area. At
present, the market value is more than Rs.50 lakhs. The suit
property is not an agricultural land. Without paying proper
Court fee, the present suit has been filed. The suit is barred
by law as per Section 27 of the Limitation Act. The plaintiff
and his wife Leelamma together sold the suit property in
favour of one Jayalakshmi for valuable consideration of
Rs.6,000/- through an unregistered sale deed dated
19.06.1982. On the date of sale deed, the said Jayalakshmi
was put in possession of the said property in part
performance of the contract. The said Jayalakshmi has paid
the entire consideration amount. Subsequently, Jayalakshmi
executed a GPA in favour of defendant No.1 on 08.09.2005
empowering him to transfer the plaint schedule property.
Jayalakshmi has handed over the possession of the schedule
property to defendant No.1 along with the documents.
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Subsequently, on the basis of the GPA, defendant No.1
executed a registered gift deed on 14.09.2005 in favour of his
wife defendant No.2 and put her in possession of the
property. Now, defendant No.2 is in possession of the
property and she has constructed a house in it by investing
huge amount. She is enjoying the property from more than
12 years. As such she has perfected her title by way of
adverse possession. The defendants have constructed the
building in the year 2005 itself. They are paying kandayam of
the schedule property to Mysuru City Corporation and all the
documents are standing in their name. When the property
was sold in the year 1982 itself, now the plaintiff is making
false claim before the Court. The plaintiff's son who has
enrolled as an advocate has started to interfere with the
possession of the defendants. Similarly, they have obstructed
the possession of one Dr.Prakash also. He has filed a suit in
O.S.No.1107/2009. The plaintiff has admitted the selling of
revenue sites. The plaintiff could not have filed the suit for
declaration and possession. Hence, prayed for dismissal of
the suit.
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4. The Trial Court having considered the pleadings of
both the parties, framed the issues and allowed the parties to
lead their evidence. The plaintiff examined himself as P.W.1
and got marked the documents at Exs.P.1 to 12. On the
other hand, defendant No.1 got examined himself as D.W.1
and got marked the documents at Exs.D1 to 30. The Trial
Court having considered both oral and documentary evidence
placed on record, comes to the conclusion that the possession
is vest with the defendants and dismissed the suit.
5. Being aggrieved by the judgment and decree of
the Trial Court, an appeal is filed in R.A.No.26/2021. The
First Appellate Court having considered the grounds urged in
the appeal and also the oral and documentary evidence
placed on record, framed the points for consideration with
regard to whether the suit is barred by limitation, whether the
suit schedule property is an agricultural land and description
of the property is proper and correct and whether the plaintiff
is entitled for the relief of declaration and possession. The
First Appellate Court having re-assessed both oral and
documentary evidence placed on record, answered point
Nos.2 and 3 in the negative and answered point No.1 in the
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affirmative concurring the judgment of the Trial Court that the
suit is barred by limitation on the ground that the document
was executed in the year 1982 and thereafter POA was
executed and the defendants are in possession having
constructed the building in 2005 and the plaintiff cannot seek
the relief of declaration and possession after having lost the
possession and invoked Section 65 of the Limitation Act and
dismissed the appeal.
6. Being aggrieved by the concurrent finding of both
the Courts, the present second appeal is filed before this
Court.
7. The main contention of the learned counsel for the
appellant before this Court is that both the Courts have erred
in relying upon the GPA Ex.D1, the gift deed Ex.D2 and
Ex.D30 unregistered sale deed/agreement of sale. The very
case of the defendants was that the plaintiff had executed an
unregistered sale deed in their favour. In the absence of the
registered sale deed, the subsequent GPA and gift deed would
be invalid in the eye of law, which aspect has been totally
ignored by the Court below. Both the Courts have committed
an error in coming to the conclusion that they are entitled to
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protect their possession as per Section 53A of the Transfer of
the Property Act. But the recitals of the sale deed Ex.D30 is
clear that it is a sale deed and not parting with possession in
terms of the agreement and the very approach of both the
Courts is erroneous. Hence, the learned counsel for the
appellant suggested to frame substantial questions of law
whether both the Courts have erred in proper construction of
the documents Exs.D1, 2 and 30, notwithstanding the fact
that Ex.D30 is an unregistered sale deed, which has not been
proved by the defendants, whether both the Courts have
committed an error in dismissing the suit on the ground of
barred by limitation and ought not to have relied upon
Ex.D30, which is an unregistered document.
8. Having heard the learned counsel for the appellant
and having considered the very case of the plaintiff, while
seeking the relief of possession and declaration, it is
contended that the plaintiff is the absolute owner of
Sy.No.65/1B measuring 1 acre 34 guntas and the same was
acquired by him under a registered partition deed dated
12.12.1955. It is his case that he is in possession and
enjoyment of the property. The plaintiff was the head of their
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joint family and in order to increase the income of the joint
family and also for the welfare of the family, he had formed a
residential layout and executed sale deeds in favour of
prospective purchasers. His contention is that he had
retained the property to an extent of 30 guntas in
Sy.No.65/1B and it is in possession of the plaintiff and joint
family members. In the second week of March 2009, the
plaintiff came to know that defendant Nos.1 and 2 are in
possession of a structure put up in a portion of the said
property measuring to an extent of 30 x 60 feet claiming that
they are in possession of the property. Hence, the plaintiff
filed a suit for the relief of declaration and possession.
9. The defendants in the written statement
contended that there is an unregistered sale deed of the year
1982, which was executed in favour of Jayalakshmi and
Jayalakshmi in turn executed GPA in terms of Ex.D1. It is
contended that there is a gift deed in terms of Ex.D2 and the
possession is with the defendants. In order to prove the said
fact, specific contention was taken that the plaintiff is not in
possession of the property and the suit is barred by limitation,
since the suit is filed after 27 years of the executing the
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document of Ex.D30. The plaintiff also got marked the
documents at Exs.P.1 to 12 i.e., copy of notice, postal
receipts, certificate of posting, original notice with cover and
acknowledgment, certified copy of tax paid receipt, RTCs,
certified copy of notice issued by the Special Deputy
Commissioner, Form No.2 and certified copy of partition deed.
On the other hand, the defendants got marked the documents
at Exs.D1 to 30 i.e., GPA, original gift deed, copy of tax paid
receipt, tax paid receipt, SAS Forms, water bill, electricity bills
and receipt, conversion letter, water bills and receipts, work
order, certificate, purchase of water meter, aadhar cards,
ration card and sale deed.
10. Having considered all these documents and also
considering the material available on record and also the
admission on the part of P.W.1, the Trial Court comes to the
conclusion that thought the plaintiff denies the execution of
the very document of Ex.D30 i.e., unregistered sale deed,
taken note of the fact that this sale deed, which is marked as
Ex.D30 shows that the plaintiff and his wife have handed over
the possession of the suit schedule property to Jayalakshmi
on 19.06.1982 itself. During the evidence of P.W.1, he has
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not denied the execution of the said document and only
contention was taken that Ex.D30 is not a registered
document and hence it is the very contention of the plaintiff
that he has not executed the document of Ex.D30. It is not
his case that it is a created document. Only in the cross-
examination of D.W.1, he has suggested to D.W.1 that he has
not executed such document and the signatures found in the
said document are not his signatures. The Trial Court has
taken note of the very execution of the document of Ex.D1
i.e., GPA, which shows that Jayalakshmi handed over the
possession of the suit schedule property to defendant No.1
and Ex.D.2, which shows that defendant No.1 handed over
the possession of the suit schedule property to defendant
No.2 on 14.09.2005. A detailed discussion is made in
paragraph No.18 and taken note of that there is no pleading
regarding dispossession of the plaintiff over the suit schedule
property and also the plaintiff has not pleaded how the
defendants got in possession of the property and there is no
explanation with regard to the possession, but only contend
that he found the possession of defendant Nos.1 and 2 when
he went around in 2009. Having considered the material
available on record, particularly the property is in possession
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of the subsequent purchaser in the year 1982, comes to the
conclusion that the suit is barred by limitation and answered
issue No.2 in the affirmative in coming to the conclusion that
suit is barred by limitation.
11. The First Appellate Court having re-assessed the
material available on record, taken note of that the suit is
filed after 27 years from the date of the delivery of
possession, which was parted in favour of the purchaser in the
year 1982. The First Appellate Court also taken note of
Article 65 of the Limitation Act that the suit has to be
instituted within 12 years from the date when the possession
of the land becomes adverse to the plaintiff. Admittedly,
though the document of Ex.D30 was not registered, the same
was executed in the year 1982, wherein also the recitals
clearly discloses the delivery of possession. The Appellate
Court also re-assessed the material that there is no specific
pleading in the plaint for having dispossessed or possession
was given to the defendants. When such being the case, the
Appellate Court also re-assessed the material that the suit is
barred by limitation invoking Article 65 of the Limitation Act
and the same is filed after a long delay and comes to the
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conclusion that the suit is barred by limitation. The suit is
filed after 27 years of the delivery of possession and
subsequent to the document of Ex.D30, power of attorney
was executed in favour of the defendants in the year 2005
and the plaintiff noticed the construction in the year 2009
having parted with the possession in the year 1982. When
such being the case, I do not find any ground to admit the
appeal and frame substantial question of law and already both
the Courts have considered the substantial question of law
suggested by the learned counsel for the appellant with
regard to the limitation is concerned.
12. The learned counsel for the appellant would
contend that Ex.D30 is an unregistered document. No doubt,
the said document is an unregistered document, but the Trial
Court has not given any finding in favour of the defendants
with regard to the said document of Ex.D30 and the same was
taken note of only for the purpose of considering the
possession was given long back and the suit is filed after 27
years of parting with possession. When such being the case, I
do not find any ground to admit the appeal and frame
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substantial question of law on the aspect of Ex.D30 also.
Hence, no ground is made out.
13. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
